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FRIENDS OF THE EARTH v. CAREY

July 13, 1976

FRIENDS OF THE EARTH, et al., Plaintiffs,
v.
HUGH L. CAREY, et al., Defendants.



The opinion of the court was delivered by: DUFFY

KEVIN THOMAS DUFFY, D.J.

 I. INTRODUCTION

 This citizen suit pursuant to § 304 of the Clean Air Act (42 U.S.C. § 1857h-2) seeks to compel New York State and New York City to enforce the Metropolitan Transportation Control Plan (TCP) which was submitted by the Governor to the Administrator of the Environmental Protection Agency (EPA), approved by the Administrator (38 Fed. Reg. 1560-61), and approved by the Second Circuit. *fn1"

 On the appeal of an earlier decision of this Court the Court of Appeals directed the entry of summary judgment against the defendants on four of the strategies contained in the TCP. *fn2" Partial summary judgment was then entered by this Court and the City defendants' then-pending motion to dismiss was denied without prejudice to its renewal should the Court of Appeals thereafter alter its holding.

 Thereafter, the Court of Appeals denied the City's motion for rehearing

 
"without prejudice to consideration by [the district court] . . . of constitutional issues not decided prior to the entry of [the Court of Appeals' order] . . . and without prejudice to the right of defendants to move in [the district court] . . . to set aside the order [of partial summary judgment] . . . on the aforesaid constitutional grounds."

 The City defendants have now moved to vacate the partial summary judgment previously entered against them and for summary judgment in their favor against the plaintiffs. The grounds for this motion focus on the alleged 10th amendment infirmities inherent in plaintiffs' construction of the citizen's suit provision of the Act (§ 304, 42 U.S.C. § 1857h-2) or, in the alternative, on the alleged constitutional infirmity of that section should the plaintiffs' interpretation prevail. *fn3"

 II. JURISDICTION

 The plaintiffs contend that I am without jurisdiction to consider these arguments. It is their position that the City has waived its right to raise these arguments by failing to raise them before the Court of Appeals within 30 days of the Administrator's approval of the TCP. Section 307(b)(1) (42 U.S.C. 1857h-5(b)(1) of the Act requires, that any review of the Administrator's action in approving or promulgating a plan be sought in the appropriate Court of Appeals within 30 days of the Administrator's approval or promulgation of the plan. Accordingly, it is argued that the City's argument is made too late and in the wrong forum. Therefore, it is urged, the City may not raise this question as a defense to a civil enforcement suit. Section 307(b)(2), 42 U.S.C. § 1857h-5(b)(2).

 Plaintiffs are clearly correct that the 30 day limitation is to be strictly enforced. See Union Electric Co. v. EPA, 427 U.S. 246, 49 L. Ed. 2d 474, 96 S. Ct. 2518 (1976); Oljato Chapter of Navajo Tribe v. Train, 169 U.S. App. D.C. 195, 515 F.2d 654 (D.C.Cir. 1975).

 However, the plaintiffs mistake the nature of the City's motion. The motion does not seek to challenge the action of the Administrator in approving the TCP; rather, it challenges the interpretation of § 304 by plaintiffs and is properly raised in this proceeding. *fn4" Moreover, as noted above, the Court of Appeals in its denial of the City's motion to rehear, endorsed the City's right to make the present motion. While that Court expressed no view on the merits of the City's claim, it was sufficiently apprised of the nature of the claim and the plaintiffs' position with respect to the jurisdictional argument that endorsement of the City's right to make the present motion must be read as an indication that it believed the district court to have jurisdiction to consider the motion. *fn5"

 III. THE MERITS

 Section 304(a) (42 U.S.C. § 1857h-2(a)) of the Act provides in pertinent part that:

 
" . . . any person may commence a civil action on his own behalf --
 
(1) against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the Eleventh Amendment to the Constitution) who is alleged to be in violation of (A) an emission standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such standard or limitation . . . ."

 The City argues that it is not a "person" who may be sued within the meaning of this section except to the extent that it is in fact a polluter. While § 302(e) of the Act (42 U.S.C. § 1857h(e)) defines "person" to include a "State, municipality, and political subdivision of a State," two circuits which have considered this question and examined closely the legislative history of the Act have concluded that in fact a state or subdivision thereof is only a person subject to an enforcement suit pursuant to § 113 (42 U.S.C. 1857c-8), the Administrator's enforcement suit provision, where the state is a polluter. Brown v. EPA, 521 F.2d 827 (9th Cir. 1975), cert. granted, U.S. , 44 U.S.L.W. 3681 (June 1, 1976); District of Columbia v. Train, 172 U.S. App. D.C. 311, 521 F.2d 971 (D.C.Cir. 1975), cert. granted, U.S. , 44 U.S.L.W. 3682 (June 1, 1976). Both circuits rejected the idea that an enforcement suit may be brought to compel a state or subdivision to enforce a plan against citizen-polluters.

 The Ninth Circuit and the D.C. Circuit both found that the ambiguous legislative history of the Act Brown, 521 F.2d at 835-36) the double notice provisions of §§ 113a(1) & (2) (42 U.S.C. §§ 1857c-8(a)(1) & (2); and the provision in § 113(a)(2) for federally assumed enforcement of a plan when a state has failed to effect the provisions of a plan, taken together, compel the conclusion that enforcement suits against a state or subdivision pursuant to § 113, *fn6" are only available where the state is itself a polluter.

 As the Ninth Circuit found, Congress could easily have included language in the statute which would have made clear the Administrator's authority to bring a civil action against a state or subdivision for failure to enforce a plan. Brown, 521 F.2d at 834 (suggesting language Congress could have included); see Hancock v. Train, U.S. , 44 U.S.L.W. 4767, 4776-77 (June 7, 1976).

 Furthermore, even if a "person" subject to suit were read to include a state and its subdivisions for all purposes, § 304(a) of the Act renders such a person subject to a citizen's suit only for "violation of (A) an emission standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard ...


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